Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter K.2: Kegel, Gerhard

Heinz-Peter Mansel

Gerhard Kegel was the most influential German academic of the second half of the 20th century in the domain of conflict of laws. His theory on the interests promoted by conflict of laws (internationalprivatrechtliche Interessen) had a decisive impact on the methods of private international law (→private international law, methods of). He had great influence over the codifications of the private international law of his time.

I. Life and work

Gerhard Kegel lived from 1912 to 2006. He came from an old family of protestant pastors and jurists. He was born on 26 June 1912 in Magdeburg and raised in the Uckermark, the landscape which Theodor Fontane described in his famous work Wanderungen durch die Mark Brandenburg (‘Ramblings through Brandenburg’) and which is considered the Tuscany of the north. Around 70 kilometres north of Berlin lies Templin, where his father was a pastor and teacher at the old p. 1063and renowned Joachimsthalsche Gymnasium, which Kegel attended as well. This humanistic-protestant influence on his youth might be the origin of Kegel’s great self-discipline and his sober work ethic. He learned not only Latin, Greek and Hebrew at school, but also English and French; in addition, he also later took up Italian, Dutch and Spanish (Zoltán Csehi, ‘Gerhard Kegel [1912–2006] und sein Werk’ in Verein zur Förderung der Rechtswissenschaft (ed), Akademische Gedächtnisfeier für Gerhard Kegel (Universität zu Köln 2007) 35, 38). During his school days he learned Syriac on his own. He gave up his plan of becoming an orientalist in favour of jurisprudence. He took great interest in philosophy, which he pursued in lifelong private studies.

From 1930 to 1933 Kegel studied law at the universities of Erlangen (summer semester 1930) and Göttingen (winter semester 1930/31), as well as at Friedrich Wilhelms University in Berlin (Humboldt University as of 1949). In his entertaining memoirs full of wit and irony he describes his studies and his lecturers (Gerhard Kegel, Humor und Rumor – Erinnerungen (CH Beck 1997)). He attended the private international law lectures of Hans Lewald and Martin Wolff, as well as two seminars taught by Ernst Rabel (→Rabel, Ernst). After his first presentation during one of those seminars, Kegel was offered an assistantship by Rabel. His second presentation on ‘Court decisions on the right to a compulsory portion in the transitional law of Alsace-Lorraine’ was published in the Zeitschrift für ausländisches und internationales Privatrecht (‘RabelsZ’; (1933) 7 RabelsZ 467) edited by Rabel. Ernst Rabel was the sole academic mentor recognized and appreciated by Gerhard Kegel. Rabel in return supposedly called Kegel his only academic student in the field of private international law (Gerhard Kegel, Humor und Rumor – Erinnerungen (CH Beck 1997) 55).

In Berlin, he passed both state examinations in law in the years 1934 and 1938. Following the first state examination in law, Kegel was appointed by Rabel as his research assistant at the Institute for Foreign Private Law and Private International Law, affiliated to the Kaiser Wilhelm Society for the Advancement of Science (Kaiser-Wilhelm Institut für ausländisches und internationales Privatrecht) in Berlin (the Max Planck Institute for Comparative and International Private Law as of 1948). The position included collaborating on expert opinions for actual court cases regarding foreign law. In 1936 Rabel conferred a doctorate on Kegel based on his dissertation ‘Issues on the Concept of Set-off: Reciprocity and Liquidity from a Perspective of Comparative Law’ (Gerhard Kegel, Probleme mit der Aufrechnung: Gegenseitigkeit und Liquidität rechtsvergleichend dargestellt (De Gruyter 1938, reprint in 1996)). This is where Kegel laid the foundations for his future works on comparative law. In this work, Kegel’s typical writing style already becomes apparent: short sentences; lack of dependent clauses; restricted use of nouns; clear ideas and distinct views. As is often the case with Kegel, the subject matter both directly relates to legal practice and is demanding from an academic point of view. Comparative law is placed at the service of the →lex fori. It serves as a source of ideas and also as a measure of evaluation. In 1941, on behalf of the Kaiser Wilhelm Institute, he carried out a study on ‘The Influence of the War on Treaties in the Jurisdiction of Germany, France, England and the United States of America’ (Gerhard Kegel, Hans Rupp and Konrad Zweigert, Die Einwirkung des Krieges auf Verträge in der Rechtsprechung Deutschlands, Frankreichs, Englands und der Vereinigten Staaten von Amerika (De Gruyter 1941)) alongside Konrad Zweigert and Hans Rupp. Kegel worked on the extensive segment regarding German law. The study evaluates from a comparative point of view how the breach of an obligation due to war is to be treated in law. Furthermore, the doctrine of clausula rebus sic stantibus (the so-called ‘Wegfall der Geschäftsgrundlage’, frustration of contracts) is thoroughly covered. Then, in 1953, Kegel presented his doctrine in a speech he delivered to the Association of German Jurists (Deutscher Juristentag, Ständige Deputation des Deutschen Juristentags (DJT) (ed), Verhandlungen des 40. DJT, vol 1 (CH Beck 1953) 139–236). However, his opinion did not prevail and he could not achieve a codification of this legal concept. At the turn of the year 1939/40 Kegel got married (Gerhard Kegel, Humor und Rumor – Erinnerungen (CH Beck 1997) 104). He and his wife had five children who today are doctors, theologians and jurists. In 1941 he was called up by the German military. Kegel utterly opposed National Socialism; this can be seen in all of his publications from this time and was also witnessed.

p. 1064At the end of the Second World War Kegel went as far westwards as possible in Germany. Thus he came to Cologne and became Faculty Assistant in 1945. In 1946 he was awarded the Habilitation (post-doctoral lecture qualification) for his segment in the 1941 book on ‘The Influence of the War on Treaties’ (Gerhard Kegel, Hans Rupp and Konrad Zweigert, Die Einwirkung des Krieges auf Verträge in der Rechtsprechung Deutschlands, Frankreichs, Englands und der Vereinigten Staaten von Amerika (De Gruyter 1941)). The university teaching credentials (venia legendi) encompassed civil, commercial, private international and comparative law. In 1947 he was appointed Lecturer (Diätendozentur). Later, he declined offers of professorship at the universities of Darmstadt and Hamburg, but was appointed to a full professorship for international law at the University of Cologne (1 May 1950). There, he founded the Institute of Private International and Foreign Private Law of the University of Cologne, which houses a vast library of German and foreign literature regarding conflict of laws. The new institute’s comparative law focus was Anglo-American law. Kegel followed the tradition of Rabel and the Berlin Kaiser Wilhelm Institute and placed his Institute at the service of court practice as a centre for legal opinions regarding foreign law. As director of the Institute, he, with the help of his research assistants, delivered a total of about 5,000 expert opinions on foreign law for German courts. In 1970 he succeeded in obtaining large private funding – an extreme rarity at the time – for the building that would house the International Legal Institutes of Cologne. But Kegel also made his Institute a place where foreign scholars could pursue their scientific interests in a vast library on conflicts of law. From 1961 until 1987 he was the president of the German Council of Private International Law. This is a scientific council consisting only of a few professors, which advises the German Federal Ministry of Justice regarding legislation at both national and European levels, as well as legislation resulting from treaties in the conflict-of-laws field. The 1986 large-scale reform and partial codification of the German Private International Law carries Kegel’s signature.

Kegel’s principal scientific work was in private international law. Nonetheless, he had a strong interest in comparative private law (see the bibliography in Heinz-Peter Mansel, Internationales Privatrecht im 20. Jahrhundert (Mohr Siebeck 2014) 57 ff). In private law, which Kegel usually approached from a comparative point of view, he focused mainly on property law (→Property and proprietary rights) and, in particular, the law of obligations. There, he also aspired to create a new system. In the field of substantive law, Kegel was more revolutionary than conservative. For instance, based on studies of comparative law, he rejected the so-called ‘Abstraktionsprinzip’, the German concept of distinguishing contractual obligation from the legal act of transfer of ownership (Gerhard Kegel, ‘Obligation and Disposition’ in Gesellschaft zur Förderung der wissenschaftlichen Zusammenarbeit mit der Universität Tel-Aviv, Universität zu Köln (ed), Beiträge zum deutschen und israelischen Privatrecht (P Hanstein 1977) 103–30). In doing so, he condemned one of the cornerstones and defining accomplishments of German civil law. His book ‘Contract and Tort’ (Gerhard Kegel, Vertrag und Delikt (Carl Heymanns 2001)) aimed to eradicate the boundaries between contracts and torts and to sort out all of the interdependencies in the protection of assets. The root of this reorientation, which was approved by Kegel, also lay in his comparative legal studies. The book found its direct sequel in Kegel’s final article, ‘Patrimony in the flow of time, causa and obligation’ (Gerhard Kegel, ‘Vermögen im Zeitfluss, causa und Obligation’ in Hans-Erich Rasmussen-Bonne (ed), Balancing of Interests: Liber amicorum Peter Hay (Verlag Recht und Wirtschaft 2005), 219. A subsequent work titled ‘Patrimony base, patrimony control, patrimony protection’ (Gerhard Kegel, Vermögensbestand, Vermögensherrschaft, Vermögensschutz (Schöningh 2008) was published posthumously.

Kegel was a master of intellectual conciseness. Short sentences and condensed statements were his trademarks. His language was often figurative. In personal contact he was very kind, but he could also phrase scientific discourse sarcastically. His review of Wilhelm Wengler’s voluminous Private International Law book (Gerhard Kegel, ‘Handwerkliche Notizen zu Wenglers neuem Werk’ [1981] IPRax 185) finishes with a warning: ‘Send me your books, otherwise I will review you!’

Kegel has received many honours. Almost since its establishment, he was a member of the North Rhine-Westphalian Academy of Sciences, Humanities and the Arts, where he later assumed a leadership role. Starting in p. 10651965, he was one of three External Scientific Members of the Max Planck Institute of Foreign Private and Private International Law in Hamburg. He received an honorary doctorate from the University of Mannheim (1983) and from the Colegio Mayor de Nuestra Señora del Rosario in Bogotá (1983). He was also honoured with the Berkeley Citation (1981), which was particularly important to him. Two Festschriften (1977 and 1987) and one Liber amicorum (2002) were dedicated to him; there was also a considerable number of appreciations in both German and foreign legal reviews on the occasions of his centenary birthday and his death (see the bibliography in Heinz-Peter Mansel, Internationales Privatrecht im 20. Jahrhundert (Mohr Siebeck 2014) 57, 65 ff). Upon his request, Kegel was granted emeritus status in 1977 and retired early in order to devote more time to research. He was an active academic researcher until his death. He held his last lecture on 2 December 2005 in Berlin on his revered teacher Ernst Rabel (Gerhard Kegel, ‘Ernst Rabel’ [2007] IPRax 1). Gerhard Kegel died on 16 February 2006.

II. Kegel’s contribution to private international law

1. Practice and science of conflict of laws: communicating vessels

In Cologne, Kegel wrote his article-by-article commentary on the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche of 21 September 1994, BGBl. I 2494, as amended, henceforth EGBGB), which contains the partially codified German private international law. This commentary was part of the 8th edition (1955) of Soergel’s commentary on the German Civil Code (Hans Theodor Soergel and Wolfgang Siebert (eds), Bürgerliches Gesetzbuch: mit Einführungsgesetz und Nebengesetzen (8th edn, Kohlhammer 1955). Kegel’s great and comprehensive work depicted the complete German private international law. This commentary included the jurisprudence of the German courts on conflict of laws. The relevant bibliography was fully documented and discussed. It is unlikely that any other study on conflict of laws could compare to Kegel’s commentary in the thoroughness of its evaluation of all possible sources. In his commentary, he also considered perceptions of foreign jurisdictions and authors. Every single treaty that applied to Germany and contained conflict-of-law rules was analysed. In the 12th edition (1996), Kegel still contributed half of the new commentary.

In 1960 he published his first edition of a private international law textbook (Gerhard Kegel, Internationales Privatrecht. Ein Studienbuch (CH Beck 1960)). It is a masterpiece of scholarship regarding choice of law because it combines an abundance of sources with an extraordinary clarity of analysis and a particular conciseness of proposition. This work had a worldwide effect and set standards for legal doctrine in international private law. It was translated into Spanish in its 4th edition (1977). The planned translation of its 9th edition (2004) into Chinese is not yet complete.

It was Kegel’s objective to grasp the reality of German private international law in action. He therefore aimed to intensely analyse and depict judicial practice in legal commentaries and textbooks.

A similar motive led him to collect expert opinions on foreign legal systems that were issued by university institutes of private international law for the use in court proceedings. On behalf of the German Council of Private International Law (Deutscher Rat für internationales Privatrecht), he published a selection of these opinions in annual volumes (IPG – Gutachten zum Internationalen und Ausländischen Privatrecht). This series was founded by Kegel in collaboration with Konrad Zweigert (Hamburg) and Murad Ferid (Munich) with the publication of the 1965/66 annual volume (1968). Kegel’s series of expert opinions published in IPG complements the collection of German jurisprudence on choice of law (IPRspr) founded by →Rabel. By this intensive exchange with the legal practice, Kegel followed in the footsteps of his teacher Rabel. Like Rabel, he considered it a nobile officium to support the courts in applying foreign law (→Foreign law, application and ascertainment).

2. Legal certainty instead of doing justice in individual cases

For Kegel, court practice was the source from where he gathered material for the distillation of choice-of-law rules. Until the reform of private international law in 1986, German choice-of-law rules were only partly codified. The rules on →personal status, including family law p. 1066and the law of →succession, were to a great extent codified in unilateral conflict rules in the EGBGB. Most of them were declared unconstitutional after the so-called ‘Spanier’ decision of the German Federal Constitutional Court (BVerfG) (4 May 1971, [1971] NJW 1509) because they one-sidedly preferred the law of the husband or father to the law of the wife or mother. In the discussion on how to fill the resulting loophole de lege lata and de lege ferenda, Kegel declared himself in favour of clear and easy-to-use rules. To Kegel, legal certainty was of paramount importance when determining the applicable law. This is why he fought choice-of-law rules that, after having weighed and taken into account all circumstances of the individual case, would call for the application of the law of the state which has ‘the most significant relationship’ or ‘close and most real connection’. The ‘closest connection’, he stated, was a popular formula, but without any content. He said that it resembled ‘a wind vane as direction sign’ (Gerhard Kegel, ‘Besprechung von Fritz Schwind: Handbuch des Österreichischen Internationalen Privatrechts’ (1978) 178 AcP 118, 120). Therefore, he tried to standardize the closest connection through ranked objective points of contact. The applicable law is supposed to be determined in a standardized, abstract way and not through an individual and specific approach. This led to the creation of the now well-known ‘Kegel’s Ladder’ (‘Kegel’sche Leiter’). Various →connecting factors are arranged in accordance with the principle of subsidiarity. Subsidiary connecting factors would only be used if the conditions of the higher-ranking connecting factor were not met. Kegel developed this cascade of connecting factors while working at the German Council of Private International Law, when he formulated the conflict of law rule regarding the general effects of marriage (Gerhard Kegel, ‘Zur Reform des deutschen internationalen Rechts der persönlichen Ehewirkungen’ in Wolfgang Lauterbach (ed), Vorschläge und Gutachten zur Reform des deutschen internationalen Eherechts (first published 1962, reprint by DeGruyter 2014) 75; Gerhard Kegel, ‘Zur Reform des internationalen Rechts der persönlichen Ehewirkungen und des internationalen Scheidungsrechts’ in Günther Beitzke (ed), Vorschläge und Gutachten zur Reform des deutschen internationalen Personen-, Familien- und Erbrechts (Mohr Siebeck 1981) 112, 114). Kegel had already proposed the objective cascade of connecting factors in 1962; over 25 years later, it was codified to a great extent in art 14 EGBGB. The general effects of marriage should be governed by the law of the country of the spouses’ shared →nationality or last shared nationality during the marriage if one of them is still the national of that country; otherwise, the law of the country in which both spouses have their habitual residence or last had it during marriage, if one of them still has his or her habitual residence there; otherwise, the law of the country in which both spouses have their residence or last had it during the marriage is applicable. Kegel was opposed to →party autonomy. The majority of members of the German Council of Private International Law and the legislator agreed with Kegel, with the exception of the third-ranking →connecting factor. This is where art 14 EGBGB appoints the law of the state with which both spouses are jointly most closely connected. Kegel wanted to apply an unrelated right of residence rather than weighing and taking into account all factual circumstances of the individual case. The legislator also allowed a limited form of choice of law which Kegel had rejected, fearing the possibility of manipulation by the spouses.

3. The autonomy of choice of law and legislative evolution

Kegel considered →choice of law to be an autonomous field of law subject to its own principles. He considered the impact of the constitution or of European primary law as solely indirect. Early on, he emphatically advocated de lege ferenda the equal treatment of men and women when determining the applicable law. He therefore rejected the use of the husband’s or father’s personal status as the only connecting factor. However, he cited the interests promoted by choice of law as the reason for this reorientation of the choice-of-law rules rather than the constitutional imperative of equal treatment (see Alexander Lüderitz, ‘Gerhard Kegel und das deutsche internationale Privatrecht’ (1982) 46 RabelsZ 475, 478 f). He considered the choice-of-law rules as laws without any content relating to substantial justice (Ordnungsnormen), wherefore they should not be measured by the constitutional standard of gender equality (see Klaus Schurig, ‘Gerhard Kegel’ in Stefan Grundmann and Karl Riesenhuber (eds), Deutschsprachige Zivilrechtslehrer des p. 106720. Jahrhunderts in Berichten ihrer Schüler, vol 2 (De Gruyter 2010) 3, 7 f). He later realized that fundamental rights are also binding for the choice-of-law legislator. This was another reason why he became a driving force in the reform of the German Private International Law and worked towards it as President of the German Council of Private International Law. Only after the so-called ‘Spanier’-decision of the German Federal Constitutional Court it was conceded that the constitution had a direct impact on choice-of-law rules (Gerhard Kegel, ‘Chapter 1: Introduction’ in Konrad Zweigert and Ulrich Drobnig (eds), International Encyclopedia of Comparative Law III/1 (Mohr Siebeck 1986) paras 1–12). In order to ensure the functionality of the national choice-of-law rules, he also rejected direct encroachments of the primary European law on the lex lata choice-of-law rules of the Member States. For Kegel, rules for private international law could barely be found in the primary law aimed to make substantive law rather than choice of law (see in this respect Gerhard Kegel and Klaus Schurig, Internationales Privatrecht (9th edn, CH Beck 2004) § 4 II). Therefore, referring to the so-called ‘Centros’ judgment of the ECJ (Case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] ECR I-1484), Kegel (Gerhard Kegel, (1999) 8 EWS editorial) quoted Marcellus’ words (Shakespeare, Hamlet act 1 scene 4): ‘Something is rotten in the state of Denmark.’ He was very critical of the indirect freedom of choice of law in the field of international corporate law, which allowed the applicable company law to be a function of the company’s place of establishment. Taking the interests of the legal order and the creditors of the company into consideration, he was suspicious of overreaching party autonomy. Even after the Centros decision, he granted the company’s law of establishment only a limited scope of application and otherwise adhered to the effective administrative headquarters as the connecting factor (Gerhard Kegel and Klaus Schurig, Internationales Privatrecht (9th edn, CH Beck 2004) § 17 II 1). Kegel therefore assumed that choice of law was largely autonomous. He wanted to satisfy the indirect requirements of the constitution as well as those of European primary law through a legislative evolution of the national choice-of-law rules via legal reforms rather than through a revolutionary direct impact of both metasystems to the national choice-of-law rules of the lex lata.

4. Conflicts justice and interests as the foundation of choice-of-law rules

Kegel ensures the autonomy of →choice of law by distinguishing justice in substantive private law (substantive justice) and justice in private international law (conflicts justice) (Gerhard Kegel, ‘Begriffs- und Interessenjurisprudenz im internationalen Privatrecht’ in Max Gerwig and others (eds), Festschrift Hans Lewald (Helbing & Lichtenhahn 1953) 259–88). The interests promoted by the conflict-of-laws rules are abstract. They are detached from the individual subject and rather refer to idealized cases. They are also isolated from the result of the applicable substantive law. Instead, they are supposed to determine the law of the state that has the closest connection to the case. Kegel writes: ‘Justice in private international law must balance the interests in the application of this or that system of private law’ (Gerhard Kegel, ‘Chapter 3: Fundamental Approach’ in Konrad Zweigert and Ulrich Drobnig (eds), International Encyclopedia of Comparative Law III/1 (Mohr Siebeck 1986) paras 3–13). ‘Substantive law aims at the materially best solution, private international law aims at the spatially best solution’ (Gerhard Kegel, ‘Paternal Home and Dream Home: Traditional Conflict Laws and the American Reformers’ (1979) 27 Am.J.Comp.L. 615, 616). It was important to Kegel that ‘substantive laws of different states [were] treated equally. . . Better [substantive] law is not preferred except in cases of ordre public’ (Gerhard Kegel, ‘Paternal Home and Dream Home: Traditional Conflict Laws and the American Reformers’ (1979) 27 Am.J.Comp.L. 615, 618; →Better law approach). Kegel names several types of interests (Gerhard Kegel, ‘Chapter 3: Fundamental Approach’ in Konrad Zweigert and Ulrich Drobnig (eds), International Encyclopedia of Comparative Law III/1 (Mohr Siebeck 1986) paras 3–13; Gerhard Kegel, ‘The Crisis of Conflict of Laws’ (1964) 112 Rec. des Cours 91, 186 ff) that must be considered while formulating choice-of-law rules: (i) Party interests. These are the normal interests of the affected persons. In the case of a contract, the interests are those of the contracting parties. Kegel focuses on the presumed interests of an ordinary party and not on specific-individual interests. (ii) Community interests (German: Verkehrsinteressen; Kegel first translated it in ‘The Crisis of Conflict of Laws’ (1964) 112 Rec. des Cours 91, 186 as p. 1068‘interests of commerce’). These are the interests of undetermined persons related socially or by business to the relevant issue of private international law. (iii) Order interests are the interests of the legal order, especially the interests in a ‘workable law’. A choice-of-law rule, according to Kegel, has to be formed in a way to bring each typically relevant interest into adequate balance when postulated as a general rule (promoting a partially critical view on this: Jan Kropholler, Internationales Privatrecht (6th edn, Mohr Siebeck 2006) § 5; very sceptical and disbelieving of its relevance for the practice of the choice-of-law rules: Axel Flessner, Interessenjurisprudenz im internationalen Privatrecht (Mohr Siebeck 1990) 44 ff. However, Flessner builds his own doctrine of interests on this; by contrast Klaus Schurig, ‘Das Fundament trägt noch’ in Heinz-Peter Mansel (ed), Internationales Privatrecht im 20. Jahrhundert (Mohr Siebeck 2014) 5–25, 11 f). According to Kegel, the interests that are served by a certain choice-of-law rule determine the rule’s field of application and its delimitation to other choice-of-law rules (Gerhard Kegel, ‘The Conflict-of-Laws Machine’ [1996] IPRax 309, 310).

Kegel strongly defended this understanding of choice of law against the so-called ‘American conflict of laws revolution’ (→(American) Conflict of laws revolution) (an earlier work about this is Heinrich Kronstein, ‘Crisis of Conflict of Laws’ (1949) 37 Geo.L.J. 483–513). American authors like Brainerd Currie (→Currie, Brainerd), Albert A Ehrenzweig (→Ehrenzweig, Albert A), David F Cavers, Robert A Leflar, Arthur von Mehren, Donald T Trautmann and Russel J Weintraub wanted to overcome the abstract and general choice-of-law rules. The applicable law should be determined by means of individual case-related and, more importantly, substantive rule-oriented methods of weighing interests. The →lex fori should be of greater importance (priority of the lex fori). In part, unilateral choice-of-law rules were preferred over multilateral ones. An understanding of choice of law developed that was strongly oriented towards legal policy. The American doctrine was a fundamental assault on the so-called ‘traditional conflict of laws’, with its multilateral reference rules without the need to weigh all of the interests in a specific case and without orientation towards the result of an application of the substantive law. Kegel’s 1964 lecture at the Hague Academy of International Law on the Crisis of the Conflict of Laws and the US Conflict of Laws Revolution (Gerhard Kegel, ‘The Crisis of Conflict of Laws’ (1964) 112 Rec. des Cours 91 ff; →(American) Conflict of laws revolution), which he used to oppose the politicization of choice of law, is of outstanding significance in this context. The lecture has been translated into Chinese (by K Xiao and G Zou, Chongtufa de Weiji, 2008). Kegel fought against these doctrines with his extensive critique and justified his interest-oriented choice-of-law doctrine and, by this, the traditional understanding of the choice-of-law rules. He invested a lot of effort in combating American changes throughout his lifetime (Gerhard Kegel, ‘Paternal Home and Dream Home: Traditional Conflict Laws and the American Reformers’ (1979) 27 Am.J.Comp.L. 615, 616; Gerhard Kegel, ‘Chapter 3: Fundamental Approach’ in Konrad Zweigert and Ulrich Drobnig (eds), International Encyclopedia of Comparative Law III/1 (Mohr Siebeck 1986) paras 3–17 to 3–53; in this respect see Zoltán Csehi, ‘Gerhard Kegel [1912–2006] und sein Werk’ in Verein zur Förderung der Rechtswissenschaft (ed), Akademische Gedächtnisfeier für Gerhard Kegel (Universität zu Köln 2007) 35, 45).

III. Kegel’s influence on private international law

Kegel was considered a ‘traditionalist’ and a ‘representative of the conservative-classic private international law’ to whom ‘the perception of private law and private international law as an instrument of public policy and the thereby linked weakening of individual legal positions seemed to be the wrong way’ (according to Michael Martinek, ‘Wissenschaftsgeschichte der Rechtsvergleichung und des Internationalen Privatrechts in der Bundesrepublik Deutschland’ in Dieter Simon (ed), Rechtswissenschaft in der Bonner Republik (Suhrkamp 1994) 529, 593 f). One can glean the reason for that impression from the fact that Kegel classified private international law as private law that aims primarily to achieve justice between individuals (Gerhard Kegel, ‘Chapter 1: Introduction’ in Konrad Zweigert and Ulrich Drobnig (eds), International Encyclopedia of Comparative Law III/1 (Mohr Siebeck 1986) paras 1–6). He considered the choice-of-law rules to be mostly neutral in regard to governmental or public policy considerations unless these considerations exceeded the interest in easy-to-use p. 1069choice-of-law rules. He mostly took →public policy considerations into account only within the field of application of the national ordre public when substantive justice imperatively required it. This explains his reluctance towards special →connecting factors for →overriding mandatory provisions. He also saw choice-of-law rules as generally neutral in regard to the result of the substantive law. To that effect Kegel was a conservative. Through his doctrine of interests and his adherence to seemingly politically neutral, multilateral ‘abstract-general’ choice-of-law rules he substantially consolidated the traditional choice-of-law system (taking a critical stance on this issue: former academic disciple Rudolf Wiethölter, ‘Begriffs- und Interessenjurisprudenz – falsche Fronten im IPR und Wirtschaftsverfassungsrecht’ in Alexander Lüderitz (ed), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts – Bewahrung od der Wende? Festschrift für Gerhard Kegel (Metzner 1977) 213 ff; in addition Christian Joerges, Zum Funktionswandel des Kollisionsrechts: die ‘Governmental Interest Analysis’ und die ‘Krise des Internationalen Privatrechts’ (Mohr Siebeck 1971); Christian Joerges, ‘Vorüberlegungen zu einer Theorie des Internationalen Wirtschaftsrechts’ (1979) 43 RabelsZ 6–79). Kegel’s influence on the reform legislation of the German private international law of 1986 cannot be underestimated (see in this respect Alexander Lüderitz, ‘Gerhard Kegel und das deutsche internationale Privatrecht’ (1982) 46 RabelsZ 475 ff; by contrast Axel Flessner, Interessenjurisprudenz im internationalen Privatrecht (Mohr Siebeck 1990) 36 ff). Through his doctrine of interests he created a new explanatory model for the formation of choice-of-law rules and ensured the embeddedness of the choice-of-law rule in private law. This explanatory model fundamentally affected choice-of-law thinking in the second half of the 20th century and it continues to do so today. It has echoed in scholarship far outside of Germany (see Henry Batiffol, ‘Actualité des intérêts en droit international privé’ in Herbert Bernstein, Ulrich Drobnig and Hein Kötz (eds), Festschrift für Konrad Zweigert: Zum 70. Geburtstag (Mohr Siebeck 1981) 23), and also influenced the basic structures of the European regulations on international private law – even if Kegel’s doctrines were certainly not the only ones to influence the formation of choice-of-law rules in European regulations (in respect to a stronger appreciation of political considerations and for a critique on the seemingly empty formalism of traditional conflict of laws see Horatia Muir Watt, ‘Private International Law Beyond the Schism’ [2011] Transnational Legal Theory 347–427). The current choice-of-law rules also include a lot of characteristics that Kegel rejected in academic discussion because they do not correspond to his ideal of multilateral, unequivocal, clear and objective choice-of-law rules. For example, the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation) and →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) encompass different →escape clauses based on the ‘closest connection’ principle. They allow a variation from the primary connecting factor in particular cases (see for example arts 4(3), 5(3), 7(3) and 8(4) Rome I Regulation, arts 4(3), 5(2), 10(4), 11(4), 12(2)(c) Rome II Regulation). Article 9 Rome I Regulation, art 16 Rome II Regulation permit the application of overriding mandatory provisions, irrespective of the law otherwise applicable under the Regulations. Party autonomy is granted a wider field of application; in many areas of conflict of laws, party autonomy is the first connecting factor. This also conflicts with Kegel’s ideal of private international law. For Kegel, the legal certainty and foreseeability of the applicable law were of significantly higher value than the flexibility of private international law, due to the fact that it has not been verified that flexible rules will always produce better results in individual cases.

Kegel also demonstrated that the traditional choice-of-law system is far from being nonpolitical. Rather, it is the result of a variety of public policy decisions that are made on the basis of conflicts in justice (Rudolf Wiethölter, ‘Begriffs- und Interessenjurisprudenz – falsche Fronten im IPR und Wirtschaftsverfassungsrecht’ in Alexander Lüderitz (ed), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts – Bewahrung od der Wende? Festschrift für Gerhard Kegel (Metzner 1977) 213, 245). Also, the delimitation between the fields of application of the various choice-of-law rules is effected in accordance with the p. 1070interests promoted by private international law and is based on public policy interest evaluation. However, current choice of law is characterized by the fact that specific choice-of-law rules protect foundational principles to a far greater degree than Kegel had wanted (see in this respect Jürgen Basedow, ‘The Law of Open Societies: Private Ordering and Public Regulation of International Relations: General Course on Private International Law’ (2013) 360 Rec. des Cours 416 ff). In many cases, this protection is predetermined by an imperative of the constitution or European primary law. Both have an effect on private international law to an extent that is much more far-reaching than what Kegel had considered to be constitutionally prescribed.

Kegel also had an influence on numerous private international law issues. For instance, his renowned technique, the ‘Kegel’s Ladder’ (cascade of connecting factors), was codified in art 14 EGBGB and was also adopted in art 8 →Rome III Regulation (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10). He made the judicial practice accessible to scholarship and developed his theory in a way that the judicial practice could use it. The combination of both fields set new standards in legal literature. This also contributed to a large extent to Kegel’s success as an academic (Rudolf Wiethölter, ‘Begriffs- und Interessenjurisprudenz – falsche Fronten im IPR und Wirtschaftsverfassungsrecht’ in Alexander Lüderitz (ed), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts – Bewahrung od der Wende? Festschrift für Gerhard Kegel (Metzner 1977) 213, 247 f).

Literature

  • Jürgen Basedow, ‘The Law of Open Societies: Private Ordering and Public Regulation of International Relations: General Course on Private International Law’ (2013) 360 Rec. des Cours 416;

  • Zoltán Csehi, ‘Gerhard Kegel [1912–2006] und sein Werk’ in Verein zur Förderung der Rechtswissenschaft (ed), Akademische Gedächtnisfeier für Gerhard Kegel (Universität zu Köln 2007) 35;

  • Axel Flessner, Interessenjurisprudenz im internationalen Privatrecht (Mohr Siebeck 1990);

  • Gerhard Kegel, ‘The Crisis of Conflict of Laws’ (1964) 112 Rec. des Cours 91;

  • Gerhard Kegel, ‘Paternal Home and Dream Home: Traditional Conflict Laws and the American Reformers’ (1979) 27 Am.J.Comp.L. 615;

  • Gerhard Kegel ‘Chapter 1: Introduction’, ‘Chapter 3: Fundamental Approach’ in Konrad Zweigert and Ulrich Drobnig (eds), International Encyclopedia of Comparative Law III/1 (Mohr Siebeck 1986);

  • Gerhard Kegel, Humor und Rumor – Erinnerungen (CH Beck 1997);

  • Gerhard Kegel, Vertrag und Delikt (Carl Heymanns 2001);

  • Gerhard Kegel and Klaus Schurig, Internationales Privatrecht (9th edn, CH Beck 2004);

  • Alexander Lüderitz, ‘Gerhard Kegel und das deutsche internationale Privatrecht’ (1982) 46 RabelsZ 475;

  • Heinz-Peter Mansel, Internationales Privatrecht im 20. Jahrhundert (Mohr Siebeck 2014);

  • Michael Martinek, ‘Wissenschaftsgeschichte der Rechtsvergleichung und des Internationalen Privatrechts in der Bundesrepublik Deutschland’ in Dieter Simon (ed), Rechtswissenschaft in der Bonner Republik (Suhrkamp 1994) 529;

  • Klaus Schurig, ‘Gerhard Kegel’ in Stefan Grundmann and Karl Riesenhuber (eds), Deutschsprachige Zivilrechtslehrer des 20. Jahrhunderts in Berichten ihrer Schüler, vol 2 (De Gruyter 2010) 3;

  • Rudolf Wiethölter, ‘Begriffs- und Interessenjurisprudenz – falsche Fronten im IPR und Wirtschaftsverfassungsrecht’ in Alexander Lüderitz (ed), Internationales Privatrecht und Rechtsvergleichung im Ausgang des 20. Jahrhunderts – Bewahrung od der Wende? Festschrift für Gerhard Kegel (Metzner 1977) 213.